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EU Basis for the Recognition of Georgia and the Non-Recognition of the de facto States in:

Anna Steiner

Enhanced Relations - Protracted Conflict(s)?, page 19 - 21

The EU's Non-Recognition and Engagement Policy (NREP) towards Abkhazia and South Ossetia in Georgia

1. Edition 2019, ISBN print: 978-3-8288-4304-2, ISBN online: 978-3-8288-7236-3, https://doi.org/10.5771/9783828872363-19

Series: Wissenschaftliche Beiträge aus dem Tectum Verlag: Politikwissenschaften, vol. 82

Tectum, Baden-Baden
Bibliographic information
19 EU Basis for the Recognition of Georgia and the Non-Recognition of the de facto States The European Union bases its recognition of Georgia (including Abkhazia and South Ossetia/Tskhinvali region) on the “EC Guidelines on the recognition of new States in Eastern Europe and in the Soviet Union” (hereinafter “EC Guidelines”) of 16 December 1991, which set out the framework for the recognition of former Soviet Union States. The EU established these guidelines since neither the UN Charter of 1945 nor the human rights covenants of 1966 had foreseen the entitlement of statehood for a non-colonial case (cf. Almqvist 2017: 2). Thus, there was no solid international legal foundation for dealing with the twelve Soviet republics (the Baltic states excluded) and the six Yugoslav republics (cf. ibidem). One week prior to the EC Guidelines, the Belavezha Accords (sometimes referred to as The Minsk Agreement), signed by Russia, Ukraine and Belarus, formally confirmed the dissolution of the Soviet Union and established the Commonwealth of Independent States (CIS). A protocol to the agreement (the Alma- Ata Declaration) was signed on 21 December 1991 with the remaining Soviet Republics – except for Georgia and the Baltic States, that also declared their independence in 1991 – and extended the CIS to them (cf. Vidmar 2013: 69). Georgia joined the CIS in December 1993, while the Baltic States never joined. Similar to the Belavezha Accords, the Alma-Ata Declaration contains the following commitments: “[S]et[...] up lawfully constituted democratic States, the relations between which will be developed on the basis of mutual recognition and respect for State sovereignty and sovereign equality, the inalienable right to self-determination, the principles of equality and non-intervention in internal affairs, abstention from the use of force and the threat of force and from economic or any other method of bringing pressure to bear, peaceful settlement of disputes, respect for human rights and freedoms including the rights of national minorities, conscientious discharge of obligations and the other universally acknowledged principles and norms of international law” (The Alma-Ata Declaration 1991: para 2; quoted from Vidmar 2013: 69). Vidmar (cf. 2013: 69-70) observed that those provisions were similar to the commitments in the EC Guidelines adopted one week later. The EC Guidelines additionally made international recognition subject to the implementation of democratic standards. However, they were applied in a different manner with regards to the SFRY, where the international personality could not be taken up by one single state, and to the former Soviet Union, where this was accepted (cf. ibidem: 70). In fact, the continuity of Russia’s membership as the successor of the Soviet Union in the UN, including the Security Council and all other organs and organizations, was not formally confirmed, but “Russia took up the seat of the 20 Soviet Union without objections” (Crawford 2006: 395). The newly independent states – among them Georgia – all became UN members in 199210 (cf. Vidmar 2013: 70). By establishing the EC Guidelines, European policy-making adopted a new common position on the recognition of states that concentrated on peace and security concerns and pragmatically responded to the radical changes of international political realities (cf. ibidem: 3-4; cf. EC Guidelines, Annex 1). At the same time, the European ‘one-size-fits-all’ approach towards the recognition of the newly independent states has “downplay[ed] the question about the statehood criteria” (Almqvist 2017: 6). In fact, the timing of Georgia’s recognition within its Soviet borders by the international community can be regarded “very strange” (Harzl 2016: 62) since the statehood criterion of an effective government, in all fairness, has not been fulfilled by March 1992 (cf. ibidem): The country’s political leadership was weak and Georgia was de facto controlled by paramilitary units (cf. ibidem; cf. Fischer 2010a: 45). Harzl (cf. ibidem) notes that the characteristics of a failed state can hardly be denied. Apparently, the trust in the political leadership of President Shevardnadze, who enjoyed high popularity in Europe and the U.S., prevailed against internal problems and a lack of democratic legitimacy (cf. ibidem: 63). Yet the goal of the international community was to ensure stability as quickly as possible and therefore apply the continuity position as basis, which meant recognizing former union republics as sovereign and independent states (cf. Coppieters 2018: 1000-1001). This was to prevent a chaotic disintegration of the Soviet Union which might have caused serious security concerns (cf. ibidem). Out of the same concerns, these republics had therefore already mutually recognised each other’s territorial integrity and inviolability of existing borders in the Alma-Ata Declaration (cf. ibidem: 1001). The EC guidelines confirmed the inviolability of borders and determined that they could only be changed “by peaceful means and common agreement”. Recognition and non-recognition decisions are always subject to debates. The EU’s pragmatic, often politically driven approach can be criticised insofar as it does eventually not always offer the same set of rules to everyone. Since strategic considerations play a leading role, there remains a risk for the EU of contradicting itself by taking arbitrary decisions as to whether or not an entity shall be recognised, and also leads to internal disagreement among the Member States (cf. Almqvist 2017: 12). As the EU commits to promoting the rule of law in its international relations, “[t]his outcome is problematic to sustain” (ibidem). 10 Moldova, Kazakhstan, Kyrgyzstan, Uzbekistan, Armenia, Tajikistan, Turkmenistan and Azerbaijan joined the UN on 2 March 1992 and Georgia, who applied belatedly, on 31 July 1992. Belarus and Ukraine were original members of the UN and continued their membership (cf. Vidmar 2013: 70, footnote 38). 21 One rule the EU insists on is the rule on peaceful negotiations, which was laid down in the EC Guidelines 1991 (cf. ibidem: 13). However, not all secessions have been negotiated and agreed on. For example, the majority of EU states recognise Kosovo, even though there was no negotiated agreement with Serbia, which “risks undermining the universal validity of this rule” (Almqvist 2017: 13). At first glance, such inconsistencies hamper the negotiation position with Abkhazia, South Ossetia or the Crimea, that might also ask for exceptions (cf. ibidem). Of course, every single entity has to be assessed individually by the EU, as every situation is incommensurable. It is needless to say that drawing comparisons between Kosovo (currently recognised by 23/28 EU countries and 112/193 UN countries and thus also regarded “partially recognised”) and de facto states in Georgia (currently recognised by five non-EU states) is not of any help in this discussion. However, “[w]hereas a commitment to the rule of law does not demand equal treatment of all cases, it requires [...] valid reasons for treating similar cases differently, [...] [which need to be] understandable and acceptable from the standpoint of affected populations” (Almqvist 2017: 13). Another condition endorsed in the EC Guidelines is the respect for human rights and guarantees for ethnic groups and national minorities. With regards to the non-recognition of both Abkhazia and South Ossetia, this condition is of utmost importance. Serious human rights violations are reported in both entities, especially in relation to the discrimination against ethnic Georgians residing there. This means that when discussing the (non-) recognition of the de facto states with reference to the EC Guidelines, human rights violations and especially the situation of internationally displaced persons significantly weaken the position of both entities. Bruno Coppieters (2018) carried out a comparative normative analysis in which he contrasts the continuity position and possible other positions (remedial position, effectivist position, choice position), focussing on their (possible) application on Abkhazia. According to his findings, the international community has chosen the right approach in 1991 by applying the remedial position for the Baltic states and the continuity position for the remaining former Soviet states (cf. ibidem: 1012). Most probably, neither of the other possible approaches would have been better accepted by the international majority or more helpful in resolving the conflicts, he found (cf. ibidem).

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Abstract

Protracted conflicts with and over de facto independent entities such as the Abkhazia and South Ossetia/Tskhinvali region in Georgia endanger the region’s sustainable and peaceful development. Anna Steiner examines Georgia’s breakaway regions in the context of EU policies – a highly topical, yet unresolved matter.

Relations between Georgia and the EU have significantly deepened within the last ten years (Association Agreement, DCFTA, Visa Liberalisation). The present book closes a scientific gap by reviewing the NREP in the light of these developments. Using a profound literature basis and expert interviews, the authorsheds light on EU-Russian relations, the politico-normative framework of EU-Georgian relations, neighbourhood relations and applicable governance concepts. Realistic proposals for a future EU approach make this book a guideline for diplomatic engage­ment.